Neidenbach et al v. Amica Mutual Insurance Company
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Amica Mutual Insurance Company's motion to strike is DENIED. [Doc. 40 ] Signed by District Judge Charles A. Shaw on 8/18/14. (KXS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
DALE NEIDENBACH, et al.,
AMICA MUTUAL INSURANCE
No. 4:13-CV-1604 CAS
MEMORANDUM AND ORDER
This matter is before the Court on Amica Mutual Insurance Company’s motion to strike the
advice of counsel defense in plaintiffs’ amended answer to defendant’s counterclaim. Plaintiffs
oppose the motion, which is fully briefed and ripe for decision. For the following reasons, the Court
will deny defendant’s motion.
On July 23, 2014, the Court issued an Order denying plaintiffs’ motion to dismiss
defendant’s counterclaim. On July 28, 2014, within the time allowed by Federal Rule of Civil
Procedure 12(a)(4)(A), plaintiffs filed their answer to the counterclaim. That same day, plaintiffs
moved to file an amended answer to the counterclaim to add the additional defense that in making
their bankruptcy filings, they relied on the advice of their attorney. Amica Mutual Insurance
Company (“Amica”) opposed plaintiffs’ motion to amend their answer to the counterclaim. Amica
argued that plaintiffs’ motion to amend was untimely because pursuant to the Case Management
Order, the deadline to join additional parties or amend pleadings was February 28, 2014. The Court
did not agree with Amica’s argument and found that plaintiffs had moved to amend within the time
contemplated by Federal Rule of Civil Procedure 15(a)(1). Therefore, the Court held that plaintiffs
could amend as a matter of course, and leave was not required to file the amended answer. The
undersigned directed the Clerk of Court to detach and docket plaintiffs’ amended answer, which was
attached to their motion for leave.
Defendant now moves to strike plaintiffs’ defense of advice of counsel from the amended
answer to the counterclaim. In the motion to strike presently before the Court, Amica again argues
that plaintiffs’ amended answer to the counterclaim was untimely in that it was filed after the
deadline to amend the pleadings had expired, and it faults plaintiffs for not moving to amend the
Case Management Order before moving to amend their answer to the counterclaim. Amica also
argues that plaintiffs’ untimely disclosure of the new defense of advice of counsel is highly
prejudicial to Amica in that discovery is set to close shortly, and Amica has not had the opportunity
to request portions of the bankruptcy legal file or depose the plaintiffs’ bankruptcy attorney.
The Court finds that Amica offers no compelling reason to strike plaintiffs’ advice of counsel
defense. The Court has already ruled that plaintiffs’ motion to amend was timely made, and in fact
was unnecessary. But even if the Court were to accept Amica’s argument that plaintiffs required
leave to amend under the Case Management Order, there is no reason to believe that plaintiffs could
not have met the good cause standard. Plaintiffs’ answer and amended answer to the counterclaim
were filed only five days after the denial of their motion to dismiss.
Amica cites no applicable procedural rule or legal authority in support of its motion to strike.
Rule 12(f) of the Federal Rules of Civil Procedure governs a motion to strike a defense in a pleading.
Under Rule 12(f), a district court “may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Motions to strike,
however, are not favored and are infrequently granted, because they propose a drastic remedy. BJC
Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007) (“[s]triking a party’s pleading
. . . is an extreme and disfavored measure.”); Stanbury Law Firm, P.A. v. Internal Revenue Service,
221 F.3d 1059, 1063 (8th Cir. 2000). If allegations are redundant or immaterial, they should be
stricken only if prejudicial to the moving party. Id. Nonetheless, resolution of such a motion lies
within the broad discretion of the Court. Id.
Here, the defense of advice of counsel is clearly material to the matters at issue in this suit,
and it is not “redundant, immaterial, impertinent, or scandalous.” Fed. R. Civ. P. 12(f). As for
Amica’s argument that it will suffer prejudice if the defense is included, the trial date in this matter
is almost six months away. There are other, less drastic ways of addressing Amica’s concerns about
its need to conduct additional discovery than striking plaintiffs’ advice of counsel defense.
IT IS HEREBY ORDERED that Amica Mutual Insurance Company’s motion to strike is
DENIED. [Doc. 40]
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
day of August, 2014.
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